Jordan-Elbridge School District's tab for trying to remove two administrators hits $1.19 million, will grow

Two years ago, the Jordan-Elbridge school district suspended administrator William Hamilton.

Two-and-a-half months later, the district suspended high school principal David Zehner.

Hamilton and Zehner still are waiting for the outcome of disciplinary hearings to determine if they will ever work in the district again. Why J-E officials are trying to get rid of the administrators remains secret; district officials have not released the charges.

And the costs to the taxpayers continue to rise.

So far, the district has spent more than $1.19 million in salary and benefits for the two men, as well as legal costs trying to remove them. And there’s no end coming soon, with the two cases likely to extend well into the 2012-13 school year, possibly longer.

The costs so far

Here’s where the total $1,186,678.91 Jordan-Elbridge has spent so far has gone:

William Hamilton, J-E assistant superintendent for business and finance: $223,702.56 in salary, dental and vision benefits, and a end-of-year payouts for unused vacation and not signing up for health insurance. He was suspended with pay July 7, 2010.

David Zehner, J-E high school principal: $205,200.55 in salary and benefits. The district placed him on administrative leave Sept. 20, 2010.

Jordan Elbridge legal fees: $634,521.35. Of that:

•$579,577 went to the district’s former lawyer, Frank W. Miller, and his law firm, which continues to represent the district in matters related to the suspensions.

•$37,892 to the school district’s law firm, Bond, Schoeneck & King.

•$11,533 to former school district attorney Danny Mevec and his firm, Mevec & Cognetti.

•$5,520 to O’Hara, O’Connell & Ciotoli law firm, which represents the suspended employees. Last year a state Supreme Court judge ordered J-E to pay legal fees in one court case; the district also had to pay the firm after losing an appeal.

Forensic audit: $123,254.45. The district hired Kessler International of New York City in 2010 to audit the district records. The company specializes in accounting forensics, computer forensics and other investigative services.

It is not unusual for school employee disciplinary cases in New York state to drag on for years and cost taxpayers hundreds of thousands of dollars when a school district and its suspended employee can’t see eye-to-eye, and an arbitrator is brought in to hear both sides.

State law requires a formal hearing before an impartial hearing officer or a panel before a tenured teacher or administrator can be dismissed from a school district.

Cases that head to a 3020-a disciplinary hearing take 653 days on average — or more than 21 months — before an arbitrator issues a decision, according to the state Education Department. (3020-a refers to a section of state education law.) So far, Hamilton’s case has lasted 732 days; Zehner, 657 days.

The average cost statewide is $216,588 per case, according to a survey in 2008 by the state School Boards Association. That cost included salary and benefits paid to the suspended employee and substitutes, as well as legal fees.

State Education Department Commissioner John B. King Jr. called the state’s disciplinary system “broken” earlier this year in his 2012-13 budget presentation.

“It takes too long and costs too much and needs to be fixed,” King said.

Labor experts, as well as school district, school board and union officials, say the system gets bogged down and doesn’t work for several reasons:

»Both sides can argue about who the arbitrator should be. When one or both sides do not want a certain hearing officer, for whatever reason, more time goes by until they can agree.

»Hearings can take a long time to schedule. A school district’s lawyers, the suspended employee’s lawyer and the arbitrator must then agree on hearing dates that work within their schedules. That can take months.

Once a hearing starts, it doesn’t run for consecutive days like a trial. Instead, the arbitrator may hold a hearing for a day, adjourn and return to the case weeks or months later.

»A shortfall in funding leads to a shortage of arbitrators. The state’s backlog for paying arbitrators is about 15 months, so some arbitrators refuse to take on new cases until they are paid, according to the state Education Department. Some experts say this isn’t a serious problem; there are many qualified arbitrators, they say.

One of the hearing officers who dropped out in Hamilton’s case wanted the district and Hamilton to split the cost of the hearing because she didn’t think the state would pay her anytime soon, according to Hamilton. The district agreed, but Hamilton said he could not afford to pay half the hearing officer’s $1,200-a-day fee in addition to his own legal fees. Unlike most public employees, Hamilton is not represented by a union and therefore must pay for an attorney out of pocket.

»More allegations, longer cases. Districts sometimes file cases with hundreds of allegations against an employee. Some call this the “spray and pray” approach, when districts file a lot of allegations with the hope some will stand.

More allegations mean more witnesses, more documents and more hearing dates, said Kevin Casey, executive director for School Administrators Association of New York State. It’s not uncommon for school districts to file hundreds of allegations against an employee, he said.

“It might be perfectly legitimate,” Casey said, speaking in general, not specifically about Jordan-Elbridge or any other school district. “But then what happens is once I decide I’m going to file the charges, tangential charges that are really not essential get thrown in. It happens all the time. It’s the theory of, ‘Let’s throw everything against the wall and see what sticks.’”

The Jordan-Elbridge cases show how disciplinary cases can take months or years to resolve.

Joseph Coleman, J-E’s interim business manager, said both the school district and suspended employees’ lawyers had to agree on a hearing officer before one could be appointed.

The hearing for Zehner, who was suspended Sept. 20, 2010, began earlier this year and is expected to continue intermittently for months.

Hamilton, who was suspended July 7, 2010, is still waiting for his hearing to begin. The district dismissed the first hearing officer available; three other hearing officers have stepped down — including the most recent on June 4 — so no date has been set.

And a lot of charges have been filed in the Jordan-Elbridge cases.

The district has filed charges against Zehner three times, outlining its allegations in 300 paragraphs of legal filings. Hamilton has been hit with two sets of charges described in 247 paragraphs.

An attempt to fix the system

The state Legislature this year approved changes to the 3020-a disciplinary hearing system to try to expedite cases. The new law, which took effect July 1, but will not affect the ongoing J-E cases, will require:

ÖAll evidence be submitted to a hearing officer within 125 days after charges are filed. No evidence can be accepted after that time unless there’s “extraordinary circumstances beyond the control of the parties.”

ÖIf both sides can’t agree on an arbitrator within 15 days, the state education commissioner would select one. The law does not specify how long the commissioner has to make his appointment.

ÖThe state Education Department will monitor whether arbitrators are meeting their deadlines, as set forth in the law.

ÖHearing officers who fail to comply with the timelines required under the 3020-a law can be removed.

ÖThe commissioner can limit the hearing officers’ pay.

“Only time will tell whether these new changes will actually secure the goal of making 3020-a hearings less costly and more expeditious,” said Jay Worona, general counsel for the New York State School Boards Association.

But the solution could be much simpler, according to Dan McCray, who runs a labor relations program at Cornell Industrial and Labor Relations School in New York City.

Under state law, school districts and unions can negotiate changes to the 3020-a rules, he said. He pointed to changes New York City’s school system adopted in 2010 that eliminated a large backlog of cases.

To speed up the process, the city was given 60 days after removing a teacher from the classroom to bring charges of misconduct and 10 days to charge a teacher with incompetence. If no charges are filed, the teacher returns to the classroom. Previously, a six-month deadline to file charges was sometimes ignored and some teachers sat in reassignment centers for months or years without charges.

New York City also has a panel of pre-approved arbitrators so there is no delay in choosing an arbitrator.

“It’s a matter of picking a pre-approved name out of a hat,” McCray said.

McCray said other school districts outside of New York City could — and should — use collective bargaining to reform the system.

While the 3020-a process is seen as time-consuming and costly throughout most of the state, the system is in place to protect tenured employees.

Carl Korn, spokesman for New York State United Teachers, said sometimes school boards want to fire a good teacher.

“Teachers are humans and they make mistakes, and when looking at an allegation of misconduct it’s important to ask the question, is this a competent, highly professional individual who made a mistake, who can learn from that mistake and return to the classroom successfully?” Korn said. “Or is the misconduct so severe that it’s most appropriate for the teacher to be removed permanently?”

Still waiting in J-E

Hamilton and Zehner, who continue to be paid their more than $100,000-plus annual salaries, plus benefits, say they would love to have their cases resolved.

“The legal expenses are high, the stress is high and the not knowing is a killer,” said Hamilton, 54, a father of four who lives in Skaneateles. “The waiting is a killer.”

Meanwhile, the two try to stay upbeat, spend time with family and friends, and stay busy with home improvement and other projects.

Zehner, a 48-year-old father of three from Jordan, got his real estate license, something he wanted to do in retirement.

Hamilton has caught up on some projects around the house and continues to volunteer on the national ski patrol like he’s done the last 28 years at Song Mountain. He had his left hip replaced in August and exercises every day.

Could J.E.’s cost be more?

William Hamilton, the suspended J-E assistant superintendent for business and finance, estimates the cost to taxpayers at more than $2.5 million.

Of that, Hamilton’s estimates at least $1 million has been spent on interim employees, new business office hires and new financial software, and another close to $1 million has been spent on attorneys, internal auditors, external auditors and private investigators since 2009.

Hamilton also estimates the district has paid him and suspended J-E High School Principal David Zehner more than $500,000 in salary and benefits, which includes Federal Insurance Contributions Act and pension costs, since they were suspended in 2010.

“My analysis is an incremental analysis,” Hamilton said. “That is, what has been spent in addition to what would have been spent if none of this nonsense ever took place. “

“It is public record what the cost has been regarding the litigation,” Coleman said. “And, people are entitled to their own opinion.”

“In many ways, I’m catching up on things I wasn’t able to do before because of my work hours,” Hamilton said.

Both Hamilton and Zehner said they hope to return to work at J-E.

“My family and I remain grateful to the taxpayers,” Hamilton said. “Everywhere I go, people are supportive and hope I’m doing good.”

But the wait is difficult, they said.

“It’s going to take a while, but we’re going to get to the truth in the end,” said Dennis G. O’Hara, partner with the O’Hara, O’Connell & Ciotoli law firm representing the suspended employees.

District officials are equally as confident in their decision to let the proceedings continue.

In August, school board members unanimously declined to settle with Hamilton, Zehner and fired district treasurer Anthony Scro. The three called on the district to pay them $907,800, bring them back to work and drop all charges against them.

The district’s $27.2 million budget for 2012-13, which took effect July 1, includes $300,223 for legal costs.

“I want to see this thing through,” J-E Superintendent James Froio said. “I want unbiased people to sit there and listen to the facts from both sides and make a decision. And whatever that decision is, we’ll abide by that. But what I don’t want to do is try this in a court of public opinion and have us make a decision that way.”